• UM Law Society

MIGRANT RIGHTS AND THE LEGAL INJUSTICES FACED BY THE COMMUNITY

In this age of globalization, we see the movement of much across borders, including quite naturally, people as well. Malaysia, in particular, used to be a country deemed to be of relative political and economic stability, hence, many from abroad move here in hopes of better quality of life. However, many cases of injustices upon the migrant population within the country, such as the lack of access to healthcare especially during the pandemic, have raised concerns over the protections provided for this group of people and whether they are sufficient to ensure the just treatment of migrants.

Indeed, the Federal Constitution provides protection over the fundamental rights of foreign workers. Article 8(1) reads that ‘all persons are equal before the law and entitled to the equal protection of the law.’ It should be understood that the use of ‘all persons’ instead of ‘citizens’ would infer the inclusion of migrant workers. It is also important to note that some articles under Part II of the Constitution (titled ‘Fundamental Liberties’) similarly utilizes the term ‘person’ rather than ‘citizen.’ Nevertheless, there remain as gray areas of law and policy which leave migrants vulnerable to abuse by both employers and local authorities.

Malaysia imposes severe criminal penalties on workers for technical immigration offences such as working with an expired permit. This can be seen in the Immigration Act 1959/63, such as Section 6(3) where failure to comply with Malaysian immigration policies relating to entry, stay and work can be penalised with immense fines, prison sentences and even whipping. ‘Undocumented’ migrant workers are considered ‘illegal’ immigrants for this reason. Persons found guilty under this law could face penal sanctions which include getting fined, detention, and eventual deportation. Nevertheless, migrant workers often become ‘undocumented’ for various reasons. While there are certainly cases of intentional illegal entry into the country, migrant workers are often ‘undocumented’ due to not having proper documentation, losing their legal status during their stay, poor immigration policies or even due to the employer’s failure to file on time; all these factors largely out of the hands of these individuals. Hence, they become more vulnerable to exploitation in comparison to their documented counterparts, becoming the easy target of discrimination and abuse due to the lack of laws in place to prevent ill-treatment.

Section 34 of the Immigration Acts further provides the procedures on detention of persons ordered for removal. In Section 34(1) of the Act, it states that a person to be removed from the country may be first detained in custody for a period that is deemed necessary in order to make arrangements for his or her removal, thus, inferring that the period of detention can be indeterminate. Moreover, Section 34(3) permits detention in any place designated by the Director General which may result in widely varying conditions of detention and detention in places that are not adequately inspected or supervised. The Global Detention Project states that 13,000 immigrants are under detention on a given day in 2020. Even more concerning, Amnesty International Malaysia reported 151 deaths in detention centres between 2016 and 2019, but were unable to pinpoint the cause due to the lack of information on these cases. Another pressing issue of the Act is its lack of assistance towards migrants facing issues of human rights violation such as abuse by employers or unpaid wages. Migrants can file for actions in an attempt to obtain redress, such as through actions in civil law, but there are significant barriers in the way. For example, migrants very often struggle with financial constraints that further hinders their access to justice.

These are to name only a few of the legal issues faced by the community. The glaring discrimination against migrants have led to terrible accounts of hardship and inhumane treatment. While there is a need to prioritize national security and safety by blocking the illegal entry of outsiders, years of the same problems prove that either the law or its enforcement needs to change. On a social level, the stigma against migrant workers needs to change. Not only would it be unfair upon them to not recognize the significant contributions they have brought to the development of the country, many forget that they are simply people deserving of the same respect any of us do. According to Amnesty International Malaysia, 2.2 million of our labourers are foreign workers, making up nearly 20% of our workforce. With the high counts of abuses against this community, it is becoming evermore necessary that the current framework surrounding migrants be reworked, so that those with actual malicious intent receive the appropriate legal punishments whereas those innocent are provided the necessary protections.